The Father v Worcestershire County Council

Ordinary foster care under a care order does not deprive a child of liberty for the purposes of habeas corpus. The remedy may apply where an extreme or unusual misuse of parental responsibility results in unauthorised detention.

A court order authorising detention supplies lawful authority unless set aside. Habeas corpus cannot itself be used to challenge that order. A claimant must ordinarily obtain a quashing order through judicial review, but judicial review will be unavailable where an appeal or an application to discharge the order is a suitable alternative remedy.

Orders of courts of limited jurisdiction remain effective unless and until set aside. The statutory procedures governing care orders cannot ordinarily be bypassed through habeas corpus.

A father applied for habeas corpus seeking the release of his two children from foster care. They had been placed in the respondent local authority’s care under a final care order made by a district judge pursuant to section 31 of the Children Act 1989.

The High Court dismissed the application. The Court of Appeal set aside that order because the hearing had been unfair and the reasons inadequate, but reconsidered the application and dismissed it: [2024] EWCA Civ 694. It held that the children were not detained and that the care order had to be challenged through the statutory family-law procedures.

The issues before the Supreme Court were whether ordinary foster care constituted detention and whether habeas corpus could be used to challenge the lawfulness of the care order despite the availability of an appeal or an application to discharge it.

1. The appeal was dismissed unanimously. The children were not detained. Ordinary exercises of parental responsibility by a local authority, or of delegated authority by foster parents, do not deprive a child of liberty amounting to detention. The children were living together in an ordinary domestic foster placement, without any extreme or unusual restrictions. The approach in Re S (Habeas Corpus) [2003] EWHC 2734 (Admin) was applied.

2. Habeas corpus may nevertheless be available where foster parents or a local authority misuse their authority in extreme or unusual circumstances so as to detain a child without authorisation. If successful, the remedy releases the child from that detention; it does not discharge the care order. The local authority must then exercise its continuing parental responsibility lawfully. A claim lacking a real prospect of establishing such circumstances may be dismissed summarily.

3. Assuming that a care order authorised detention, the order would supply lawful authority and a complete defence to habeas corpus unless set aside. The writ is directed to the detainer and is not itself a procedure for challenging the court which made the order. An applicant must ordinarily seek a quashing order through judicial review in aid of habeas corpus.

4. Judicial review was unavailable because the father had suitable alternative remedies. He could seek permission to appeal the care order or apply under section 39(1) of the Children Act 1989 to discharge it. Those procedures protect the children’s welfare through participation by the parties and a children’s guardian. They could provide all the substantive relief sought.

5. Orders of courts and tribunals of limited jurisdiction establish the legal position and must be obeyed unless and until set aside. Where a person has had a fair opportunity to challenge a Family Court order through the statutory appellate structure, using judicial review to bypass that structure is an abuse of process.

6. Habeas corpus retains a limited role in cases concerning children. It may address unauthorised detention and may operate procedurally in support of the court’s inherent parens patriae jurisdiction. Save perhaps in wholly exceptional cases, it cannot cut across the procedures established by the Children Act 1989.

1. United Kingdom Supreme Court: Dismissed the father’s appeal and affirmed the Court of Appeal’s dismissal of the habeas corpus claim: [2025] UKSC 1.
2. Court of Appeal: Set aside the High Court order because the hearing had been unfair and adequate reasons had not been given. It reconsidered the application and dismissed it because the children were not detained and the care order had to be challenged through the statutory family-law procedures: [2024] EWCA Civ 694.
3. High Court: Russell J dismissed the habeas corpus application on 15 April 2024, holding that an appeal against the care order was the correct procedure.
4. Family Court: DJ Solomon made the final care order under section 31 of the Children Act 1989 on 9 June 2023.